§ 438 — Remedies

438.—(1) Subject to this section, the remedies that the Court may grant for an infringement of a provision of this Division include —(a)

an injunction (which may be subject to terms);

(b)

either —(i)

damages; or

(ii)

if the claimant so elects, statutory damages; and

(c)

an order that an offending article in the defendant’s possession or before the Court be —(i)

delivered up and forfeited to the rights owner;

(ii)

destroyed; or

(iii)

otherwise dealt with.

(2) The remedies in subsection (1)(b) are not available against a defendant who deals in a circumventing device or service if it is proved that the dealing is not wilful.

(3) Damages under subsection (1)(b)(i) may take into account any profits that are attributable to the infringement.

(4) For the purposes of subsection (1)(b)(ii) —(a)

a claimant may only be awarded a total of $20,000 in statutory damages in a single action, even if the action involves 2 or more infringements; and

(b)

in deciding the amount of statutory damages to award, the Court must consider all relevant matters, including —(i)

the nature and purpose of the act constituting the infringement, including whether the act is of a commercial nature or otherwise;

(ii)

the flagrancy of the infringement;

(iii)

whether the defendant acted in bad faith;

(iv)

any loss that the claimant has suffered or is likely to suffer because of the infringement;

(v)

any benefit gained by the defendant because of the infringement;

(vi)

the conduct of the parties before and during the proceedings; and

(vii)

the need to deter similar infringements.

(5) In this section, an article is an “offending article” if —(a)

the article was used, or is being used, to carry out an infringement of a provision of this Division; or

(b)

an infringement of a provision of this Division was or is being carried out in relation to the article.

—(1) Subject to this section, the remedies that the Court may grant for an infringement of a provision of this Division include —(a)

an injunction (which may be subject to terms);

(b)

either —(i)

damages; or

(ii)

if the claimant so elects, statutory damages; and

(c)

an order that an offending article in the defendant’s possession or before the Court be —(i)

delivered up and forfeited to the rights owner;

(ii)

destroyed; or

(iii)

otherwise dealt with.

(2) The remedies in subsection (1)(b) are not available against a defendant who deals in a circumventing device or service if it is proved that the dealing is not wilful.

(3) Damages under subsection (1)(b)(i) may take into account any profits that are attributable to the infringement.

(4) For the purposes of subsection (1)(b)(ii) —(a)

a claimant may only be awarded a total of $20,000 in statutory damages in a single action, even if the action involves 2 or more infringements; and

(b)

in deciding the amount of statutory damages to award, the Court must consider all relevant matters, including —(i)

the nature and purpose of the act constituting the infringement, including whether the act is of a commercial nature or otherwise;

(ii)

the flagrancy of the infringement;

(iii)

whether the defendant acted in bad faith;

(iv)

any loss that the claimant has suffered or is likely to suffer because of the infringement;

(v)

any benefit gained by the defendant because of the infringement;

(vi)

the conduct of the parties before and during the proceedings; and

(vii)

the need to deter similar infringements.

(5) In this section, an article is an “offending article” if —(a)

the article was used, or is being used, to carry out an infringement of a provision of this Division; or

(b)

an infringement of a provision of this Division was or is being carried out in relation to the article.